In Illinois, as in every state, most slip and fall cases alleging a dangerous property condition reach a settlement, with very few claims ever going to trial. But what might a settlement look like? The following example illustrates the key elements and lifecycle of a slip and fall settlement in Illinois.
12-year-old Rita, her brother and parents were driving to Woodstock for Groundhog Days festivities on a clear cold February morning. The temperature was still below freezing, but no new snow had fallen since the previous night. Rita's dad pulled over at a roadside rest stop, Gas & Grub (G&G). While Rita's family ordered pastries and drinks, she went to the restroom.
When she came out, she saw them sitting at a picnic table outside on an area that had been cleared of snow. Excited about their day's plans, she ran and skipped towards her family. Just before she reached the table where they were sitting, she slipped on ice and fell on her back. The back of her head struck the brick surface, temporarily knocking her out. An ambulance rushed her to the hospital.
At the ER, Rita complained of a bad headache and nausea. She vomited once, cried and appeared irritable. The ER physician suspected a concussion and recommended that Rita get as much rest as possible over the next few days and that her parents follow up with their family doctor.
Rita's pediatrician observed her confusion about the accident. He confirmed post-concussive syndrome based on her symptoms, which included headaches, disturbed sleep and increased anxiety. He prescribed analgesics for Rita's headaches and advised Rita's parents to monitor her symptoms. He told them that time was the best therapy for any cognitive problems, which tend to disappear on their own in the weeks and months after the injury.
Rita had been making about $30 per week babysitting for the next-door neighbors. Her doctor advised her to avoid that stress until all symptoms had disappeared for at least two months. She was more disappointed to learn that she also would have to sit out the girls' soccer season at school. These kinds of subjective losses can become compensable damages.
Rita had two years in which to file a lawsuit for her injury under the Illinois statute of limitations. To understand the importance of the Illinois statute of limitations in a case like Rita's, see Nolo's article, How long do I have to file a slip and fall lawsuit in Illinois?
Once a settlement offer was accepted, there would be no going back later for more compensation if Rita needed additional care or treatment. To get a better insight into any complications from Rita's injury that might unfold in the future, especially with a pediatric brain injury that could have long-term effects, her attorney wanted to wait until the Rita's condition stabilized before submitting a demand letter to the insurance company.
Rita had been symptom-free for almost four months when herattorney sent a demand letter claiming that G&G was liable (legally responsible for Rita's injuries under a negligence theory) and describing specifically how the accident occurred.
The letter asserted that G&G management knew about the ice under the picnic benches where Rita slipped and fell.
G&G employees had removed snow from the area the night before. While ordinarily property owners would not be liable for snow and ice that have naturally accumulated on their property in Illinois, even if the owner removes snow to expose ice underneath, the ice that Rita slipped on was not "natural," her attorney asserted. The Murray brothers had been ice-carving on the same bench before Rita's family arrived that morning, with the permission of G&G management, leaving ice shavings on the brick surface where Rita fell. (Learn more about Injury Liability for Slip and Fall Accidents on Icy Surfaces.)
The demand letter also spelled out Rita's damages -- an itemized list of all losses stemming from her slip and fall accident, including (1) the cost of medical and related care (e.g., ambulance, ER, medications, etc.) and (2) Rita's babysitting income.
Rita's total out-of-pocket compensatory damages amounted to $4,500. Her attorney decided that another $11,500 was appropriate tocompensate Rita for herpain and suffering, along with missing out on important school activities. The total demand was $16,000. (Learn more about Damages in a Personal Injury Case.
In support of the claim, the letter included:
The insurance company responded with a letter rejecting the demand and offering $10,000 to settle the matter.
The insurance company asserted that, under the Parental Negligence Doctrine in Illinois, which would partially offset any liability on G&G's part (assuming Rita's parents' negligence reduced the total fault of G&G below 25% of the total fault of all parties), Rita's family shared the fault for her injuries. Their argument was that Rita's parents chose to sit outside in an area where there were visible pieces of ice on a day that was below freezing, and neglected to warn Rita not to run or otherwise to protect her. (For more on comparative negligence defenses in personal injury cases, see Nolo's Defenses in Personal Injury Cases.)
After several phone conversations between the insurance company and Rita's attorney, the insurance company made a final offer of $13,500. Rita and her parents discussed the offer with the attorney, considering the costs and attorney's fees if a lawsuit were filed and the case went to trial. Rita's parents accepted the offer on her behalf, as she was not old enough legally (lacked legal "capacity") to sign a settlement agreement.